January 27, 2017

Unimpressed with Implausible and Trivial Risks, another Appeals Court Rejects Privacy Class Action against a Cable Television Provider

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In two of our 2016 privacy law articles we predicted the Supreme Court’s May 2016 decision in Spokeo v. Robins would put an end to certain statutory claims brought under federal telecommunications law against the cable industry (even though Spokeo had nothing to do with telecommunications law or cable).  

Our prediction was confirmed when a Federal Appeals Court in St. Louis decided Braitberg v. Charter Communications and said a cable company’s failure to destroy the personal identification information of former customers, standing alone, would not be a sufficient privacy injury to permit those customers to sue in federal court. We wrote about Braitberg last summer.  

On January 20, 2017, the Seventh Circuit Court of Appeals in Chicago reached the same conclusions in Gubala v. Time Warner Cable, Inc., which the Court said was “very similar” to Braitberg and, as the Court noted, filed by the same lawyer who had represented Braitberg.  

The statutory claims were the same, arising from a section of the Cable Communications Policy Act (CCPA) that commands cable companies to dispose of customer information when no longer necessary for the purpose for which it was collected.  

Like Braitberg, Gubala was a former customer who learned the cable company still had information he had provided to establish service. His class action suit was dismissed by a federal district court in Wisconsin (which applied the standing analysis of Spokeo) and he appealed.  

The Seventh Circuit decision in Gubala was issued quickly, only 16 days after oral argument; Judge Richard Posner made short work of Gubala’s attempts to get around Spokeo.    

Gubala had claimed failure to destroy his personal information was a “substantive” violation of CCPA not foreclosed by the Supreme Court’s decision. The Court rejected the theory (noting it had been abandoned at oral argument) concluding that even if a failure to destroy information is substantive, the failure doesn’t create standing to sue unless it also causes a “concrete injury.” That’s the rule under Spokeo. And Gubala had not even alleged the information had been misused or leaked, or even that there was a risk of such leakage.   

As to plaintiff’s “strangest” claim that defendant’s “unlawful retention of Plaintiff’s personal information” deprived him of the full value of his transaction with the cable company, the Court said, “This is gibberish. Time Warner did not take the plaintiff’s personal information away from him; he still has it (unless he tore up his birth certificate, credit card information, etc.); he hasn’t been deprived of anything.”